The Competition Commission and SAB - 07 April 2011
The Competition Tribunal has on 07 April 2011 dismissed the complaint that the Competition Commission brought against South African Breweries and read out the statement below.
Statement on dismissal of complaint referral against SAB and the appointed distributors, 7 April 2011
We have found that we do not have jurisdiction to hear this referral. This is a regrettable outcome but we are bound by recent decisions of the superior courts to come to this conclusion. Recent case law requires that a complaint lodged by a complainant to the Commission should be the same as that referred to us unless it meets certain formalities that have to be complied with, prior to the referral.
When we give reasons for our decision we will explain why the case law, which is binding upon us, has led us to this conclusion. We will also indicate why this case law may need re-consideration by superior courts in the future so that a complainant's rights of access to justice and the Commission's investigative powers are not unduly compromised.
We regret that this case has not been brought to finality so it could be decided on the evidence and not a point of jurisdcition. The complainant will not know whether its complaint was well founded and the respondents will not have an opportunity to clear their names from accusations of anticompetitive conduct.
Background to SAB's application for a dismissal
The Competition Tribunal heard on 01 April 2011 an application by SAB to dismiss the case which the Competition Commission brought against it and its appointed distributors in December 2007. The application comes after a 3 year investigation by the Commission against SAB, followed by an ongoing hearing in the Tribunal which started on 11 August 2010.
In its 2007 complaint the Commission alleged that:
- SAB’s agreements with its appointed distributors had the impact of dividing markets between competitors, in contravention of the Competition Act;
- SAB favoured its own distributors at the expense of independent distributors and, in that way, placed independent distributors at a disadvantage in the market; and
- SAB had abused its dominance by requiring retail outlets not to deal with SAB’s competitors, thereby placing SAB’s competitors at a disadvantage in the beer market.
Since referring this case to the Tribunal, the parties have agreed to only deal with the allegations relating to the distributors for the time being and bring the allegations of abuse of dominance at a later stage.
SAB has denied these allegations and tomorrow it will argue that the Commission was not entitled to refer the allegations to the Tribunal as it did. Accordingly, SAB argues, the Tribunal should dismiss the Commissions case before the ongoing hearing progresses any further. The Commission believes it was entitled to refer all its allegations and will therefore ask the Tribunal to disregard SAB’s application.
This past Monday the Tribunal adjourned the main hearing into the allegations of anti-competitive behaviour by SAB in order to hear the application to dismiss the Commission’s case. If the Tribunal finds in SAB’s favour, this will end the proceedings currently against SAB. Should the Tribunal find against SAB, the main hearing will continue with immediate effect as per the hearing dates already agreed, that is until 15 April 2011 then again from 3 to 5 May 2011.
On Behalf Of:
Registrar: Competition Tribunal
Tel: (012) 394 3355
Cell: +27 (0) 82 556 3221